Friday, April 25, 2014

Cameron Smith: Supreme Court upholds Michigan ban on race preferences

On April 22, the United States Supreme Court issued an opinion in Schuette v. Coalition to Defend Affirmative Action upholding an amendment to the Constitution of the State of Michigan which banned racial preferences in public education, employment and contracting.

The central issue in the case was "whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions…."

Writing for a split Court, Justice Kennedy was joined by Chief Justice Roberts and Justice Alito. Justices Thomas, Breyer and Scalia concurred in the judgment of the Court, while Justices Ginsburg and Sotomayor dissented. Justice Kagan recused herself from the case.

Justice Kennedy noted that the case was "not about how the debate about racial preferences should be resolved. It is about who may resolve it."

Kennedy distinguished the Michigan amendment from other voter-enacted measures struck down by the Court that were "designed to be used, or…likely to be used, to encourage infliction of injury by reason of race."

The Court found that while consideration of racial preferences is permissible under certain conditions, the electorate in each state also has the constitutional authority to prohibit race-based classifications entirely.

The Michigan amendment was crafted in response to the Court’s 2003 opinion in Grutter v. Bollinger, upholding race as one of many factors in law school admissions. There the Supreme Court noted, "We expect that 25 years from now, the use of racial preferences will no longer be necessary."

With states like California, Florida, and Washington already banning racial consideration in public education admissions, the Supreme Court striking down the Michigan amendment would have directly undermined a movement in those states away from race-based preferences.

Ironically, the argument against the Michigan amendment suggested that mandating a racially neutral policy exacerbates inequality by precluding race-based policies designed to give certain candidates for academic admission or employment a boost on account of their race.

In the most biting of the three concurring opinions, Justice Scalia noted that Michigan’s amendment that embraces the federal Equal Protection Clause’s prohibition of government-sanctioned racial discrimination cannot simultaneously violate it.

Most Americans know that even though our nation has made progress over the past half century, we are far from a post-racial society. Our nation’s past is riddled with arbitrary laws based upon race that created a serious disadvantage for many Americans. Some believe preferences based on race are the most effective means to repair that generational damage.

Justice Kennedy’s opinion cautions against such an approach. While racism must never again be given quarter in American society, the Court noted that "[g]overnment action that classifies individuals on the basis of race…carries the danger of perpetuating the very racial divisions [those governments seek] to transcend." He suggested that the analysis of the Court of Appeals overturned by the Court begins with the incorrect "proposition that all individuals of the same race think alike."

He further stated, "It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds."

While racial preferences are likely living on borrowed time, different types of preferences will always be a part of government hiring, education admissions, and contracting. The very fact that decisions must be made between candidates ensures that reality. The question left for voters is whether they will approve preferences that truly support the promise of equal opportunity for all.

About the author: Cameron Smith writes a regular column for Alabama Media Group. He is vice president and general counsel for the Alabama Policy Institute, an independent, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families. He may be reached at camerons[at]alabamapolicy.org or on Twitter @DCameronSmith.

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